SUKHNOO SHAH Vs. CHANDU LAL

JUDGEMENT

(1.) THIS is a second appeal against the judgment of the Addl. District Judge at Jammu who reversed the decision of the Subordinate Judge at Bhaderwah. It is necessary at the outset to state succinctly the salient facts relating to this protracted litigation.

(2.) SURAJ Ram, father of respondents, executed an agreement for sale of his land to Sukhnu Shah, the appellant, on 30 -7 -1984 (Bikrami). As Suraj Ram did not implement the agreement Sukhnu Shah instituted a suit for specific performance and duly obtained a deeree from the Munsiffs court at Bhaderwah on 11 -3 -1986. As in spite of the decree Suraj Ram did not execute a formal sale deed, the decree -holder took out execution and on 23 -3 -1988 a sale deed in favour of Sukhnu Shah was executed by the court. It was got registered on 21 -6 -1988. But Suraj Ram did not deliver possession of the property to Sukhnu Shah who, therefore, filed a suit for possession on the basis of the sale deed in his favour and obtained a decree for possession from the Subordinate Judge at Bhaderwah on 25 -2 -1989. That was a decree for joint possession along with other co -sharers of Suraj Ram. In 1996 Sukhnoo Shah launched partition proceedings and got his vendors share of the land separated and entered into exclusive possession thereof. In the year 2002 the sons of Suraj Ram filed a suit against Sukhnoo Shah to set aside the sale in his favour on the ground that the property sold was ancestral property and the sale by their father was neither for family necessity nor for discharging their fathers antecedent debts. The other ground on which the suit was based was that Sukhnoo Shah being a non -aqriculturist, a sale in his favour by or on behalf of Suraf Ram who was an agriculturist was void under the provisions of the Jammu Alienation of Land Regulation. This suit was dismissed by the Subordinate Judge at Bhaderwah on 26th Har, 2004, An appeal to the District Judge at Jammu was also dismissed in 2005. A second appeal was then preferred to the High Court. By this time the record relating to this suit along with the records of many other suits were destroyed by fire which broke out in the court of the Sub -judge at Bhaderwah. However Kilam J. who heard the second appeal remanded the suit to the Hal court on 10 -1 -2006 for fresh disposal with the direction that the trial judge should ascertain whether the sale by Suraj Ram was to discharge antecedent debts. The trial court heard the suit again and arrived at the finding that the sale was for antecedent debt which was not immoral or illegal and that it was consequently binding on the plaintiff:; who were the sons of SuraJ Ram. It also held that the Land Alienation Regulation did not affect the sale because a decree for specific performance had been passed before that Regulation came into force. On these findings, the suit was dismissed.

(3.) THE plaintiffs appealed to the AddL District Judge at Jammu who agreed with the trial court that the sale by Sura] Ram was to discharge antecedent debts and that it was binding on the plaintiffs who were his sons. But he found that the sale was invalid because it contravened the provisions of the Land Alienation Regulation. In accordance with the provisions of that Regulation, he declared that Sukhnu Shah should he treated as a mortgagee for a period of 20 years. Sukhnu Shah has come up in second appeal against this decision.